Archive for November, 2005

My TAP article about Casey and Alito is up. Atrios explains the reason for Ken Mehlman’s House of Fog memo (we nominated him because he disagrees with the legal positions conservatives have long held on the most salient issues! Scout’s honor!”) Not only does the public favor not confirming Alito if he’s anti-Roe by a 16-point margin, 60% of independents and even 35% of Republicans would not confirm if he’s against Roe.

In addition, Professor B explains what’s at stake in a brick-by-brick dismantling of Roe:

…we could end up with a situation in which, theoretically, you still have the right to an abortion–that is, Roe v. Wade hasn’t been fully overturned. But in practice, and practice is what matters, you don’t, or can’t, because all these individual little delays and hassles and inconveniences, none of which, in and of itself, constitutes what Alito considers an “undue burden” on some generic, middle-class, well-off, happily-married imaginary woman–all these little delays add up into a *collective* burden that means that abortions are inaccessible to women who need them. What you can practically do matters more than what you can theoretically do: pregnancies aren’t theoretical, women aren’t theoretical, abortions aren’t theoretical. It is the very fact that each individual woman’s individual situation is different that makes this whole “undue burden” issue so important. “Undue burden” for whom? What constitutes a burden to me might not constitute a burden to you; what isn’t burdensome to you or me might be impossible for the woman down the street.

This is right. The effect of permitting ever-widening state and federal regulations while simultaneously making it extremely difficult to challenge the regulations in court would be to return to the indefensible status quo ante on the ground before Roe: abortion-on-demand for affluent women (especially those in urban centers), extremely restricted access for everyone else. But with an extra varnish of bad faith on top.

When they touch on issues that split people along political lines, Alito’s dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. In his dissents, at least, he has been a conservative’s conservative — not always in his reasoning, which tends to be modest, but in his ultimate conclusions.

So, while Orin Kerr’s anecdote is evidence against the argument (which, as far as I can tell, nobody is making) that every single one of his opinions has been conservative, that’s all it does. You could make the same argument about Clarence Thomas: there have been cases where I agree with him and disagree with the Court’s more liberal members. That’s doesn’t make it inaccurate to call him a conservative justice. Alito’s record, in total, is very conservative. And until he was nominated, there would have been nothing remotely controversial about this claim.

The Free State Project, a libertarian movement that chose New Hampshire as its promised land for a society based on maximum choice and minimum government, has abandoned its goal of recruiting 20,000 members by 2006.

Once the deadline was met, the group planned to move to New Hampshire en masse. Today, only about 6,800 people are members of the project, and most live in California and Florida. Only about 130 people have made the move since signing up.

Money quote from Dante Scala, of the New Hampshire Institute of Politics:

It always seemed implausible that libertarians, who above all value their individuality were going to be able to group together and accomplish such a large common goal

In a very important post, Nathan Newman has an extensive list of 3rd Circuit worker’s rights cases in which Alito issued a dissent which was more conservative than the majority ruling. Some lowlights:

In RNS Services. v. Secretary of Labor, the court found that a mining services company was violating safety laws under the Federal Mine Safety and Health Act. The court rejected the company claim that it was not covered by mining safety laws, seeking to narrow application of the law to mines, not coal processing plants associated with such mines. Alito in dissent voted to exempt the facility from those mining safety regulations.

In a race discrimination case, Bray v. Marriott Hotels, Marriott sought to deny the plaintiff, an african-american women who alleged racial discrimination, the right to even present her case to a jury. The Third Circuit argued that given disputed facts in the case, it was up to a jury, not judges, to decide if discrimination had occurred.In dissent, Alito argued for granting summary judgement against the plaintiff, not even letting her present her case to a jury.

In Sheridan v. DuPont De Nemours, the full court upheld a jury verdict against a hotel for sex discrimination, yet Alito voted to overturn the jury verdict and substitute his own minority view of the evidence for the jury’s.

In Caterpillar v. UAW and Local 786, the Third Circuit upheld a system were the company and the union negotiated for union stewards to process grievances over violations of the contract without losing pay or benefits, a relatively common practice that had been used at this particular plant for over 18 years. In the wake of a strike, the company suddenly challenged the legality of the system the company itself had agreed to and sought to have it overturned by the courts. The Third Circuit rejected the company’s argument.But in dissent, Alito sought to overturn the practice to benefit the company and disabled union grievance procedures, which they had bargained for through their previous contract.

The intent of my lengthy argument about the “sovereign immunity” doctrine was largely to counteract the claims that conservative jurists are “strict constructionists” or consistently believe in “judicial restraint” or some such. But Publius is certainly right, as far as it goes, that the “blame” for this jurisprudence lies with the Supreme Court. Again, my argument about Alito is that I strongly disagree with him philosophically, not that he’s incompetent or actively nullifies upper court precedents. His application of existing precedent in Hibbs was not unreasonable; that’s absolutely correct. For someone like Ann Althouse, for whom professional competence is essentially the only criterion the Senate can legitimately apply, this ends the story. She’s entitled to apply that standard. But I disagree–I believe that Senators can, and should, also consider a nominee’s judicial philosophy (after all, the President does), and so the fact that Alito is an able jurist is the beginning, not the end, of the discussion. Opinions like Chittister (or his Casey dissent) do provide useful predictive information. Binding precedents usually leave some discretion for lower court judges. Alito’s broad interpretation of the “undue burden” statute was not lawless; it makes perfect sense from his perspective to go as far as precedent will allow. But the fact that he read the standard significantly more broadly that the woman who wrote it provides valuable information about how he’s likely to rule when he’s no longer bound by upper court precedent.

And so the important question about Chittister is this: how would a justice who believed that the Seminole Tribe line of cases was incorrectly decided rule? Did the precedents leave enough room to plausibly make FMLA rights enforceable against the states? And the answer, of course, is “yes.” The standard established by Garrett and Kimmell–that Congress could abrogate sovereign immunity if the legislation was “congruent and proportional” to a constitutional violation–permitted significant discretion, and the fact that FMLA involved the heightened scrutiny of gender discrimination gave Congress’ argument more weight. This is the significance of the fact that the author of Seminole Tribe ultimately disagreed with Alito and thought that Congress had met the standard–not that Alito was somehow acting lawlessly, but that if he was skeptical of that line of cases, he could have written a perfectly reasonable decision upholding Congress’ abrogation of sovereign immunity. The fact that he didn’t provides evidence–not dispositive evidence, but good evidence–that he thinks the “sovereign immunity” cases were correct.

And, of course, this is the most logical inference anyway. We know from his opinion in Rybar that he’s an aggressive proponent of the “new federalism.” (“Was United States v. Lopez,” he asked wistfully in the dissent, “a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?”) He argued in this case that a federal law that prohibited possession of a machine gun exceeded Congress’ power under the Commerce Clause. Again, my point is not that this was a completely absurd application of Lopez, but the opinion–a solo dissent, whose reasoning was also rejected by other appellate courts (and the Supreme Court refused to grant cert to review as well)–certainly cannot be said to compelled by it. Now, it is true that his desire to take commerce clause restrictions further than the Supreme Court has so far does not, in theory, mean that he will support the “sovereign immunity” cases; as I said, in my opinion the constitutional basis for the former line of cases is far stronger. But in the real world, the overlap between people who support Lopez and Seminole Tribe is extremely high. Despite the philosophical and ideological differences between the Court’s five most conservative members, the same 5 constituted the majority in Lopez, Morrison, Seminole Tribe, and Garrett. And while Judge Noonan is an example of a conservative who opposes the sovereign immunity cases, he’s equally hostile to the commerce clause cases. Most people, both supporters and opponents, see this collection of cases as a package. Looking at the evidence, then, it’s entirely logical to assume that he supports the sovereign immunity jurisprudence of the Rehnquist Court. Comparing his Casey dissent and his Chittister opinion suggests that he’s considerably more sympathetic to “states’ rights” than privacy rights–a conclusion that is not exactly earth-shattering. (As Kos quite rightly points out, one of the amusing sidelights of the Alito nomination–as reflected in Mehlman’s talking points–is seeing people who purportedly revere Thomas and Scalia scream bloody murder if anyone suggests that Alito shares core aspects of their jurisprudence. If you guys don’t think he’ll overturn Roe or interpret the Establishment Clause more narrowly or support the “new federalism,” why the hell do you support him? If you’re willing to put up someone who openly supports liberal positions on these things, we can skip the whole controversy.)

So, in other words, it is perfectly reasonable to infer that Alito supports the Court’s “sovereign immunity” jurisprudence; the evidence, while necessarily incomplete, is strong. Unless he repudiates the decisions at his hearings or other evidence emerges, it’s fair to evaluate his nomination with this assumption.

US casualty rates in Iraq, October notwithstanding, have been somewhat less severe in 2005 than in 2004. The biggest reasons for the (mild) decline are probably the absence of the major anti-Falluja offensive of November 2004 and of the Sadr-led Shiite insurrection of April 2004. I suppose that the destruction of Falluja is an achievement, as it seems that whether or not insurgents have returned, they do not boast the same level of control they once had. Moqtada Al-Sadr is still alive and still a leader, so I’m not certain what the April and August operations against him achieved.

What’s interesting to me is that casualty rates have remained remarkably stable since April 2004. Spikes and troughs aside, we can reliably expect about 70 or so dead Americans in a given month in Iraq. This surprises me because the situation in Iraq is not static, and I find it interesting that outcomes remain constant.

What’s changing? I have no doubt that the Army and the Marine Corps are now better at their jobs than they were in 2003. Soldiers and Marines in Iraq now have a better handle on tactics, a firmer grip on the local situations, and much more experience in dealing with an insurgency at the micro level. Even if the operational doctrine of the organizations are misguided, tactical execution should have improved simply through repetition.

Casualty levels, however, have not changed. This could mean a couple different things. One, it is possible that US tactics have improved, yet casualty rates remain the same because operations have taken on an increased tempo or are being launched in riskier situations. It’s possible that this is the case, although I’m not sure there’s a lot of evidence to support it. Soldiers are for the most part still being killed by IEDs, which doesn’t suggest that the American operational approach has substantially changed. The second possibility (and I consider this very likely) is that the insurgents themselves have improved substantially since 2003. There are some good reasons to suspect that this is the cause. Smaller organizations tend to incorporate lessons more effectively than large ones. Insurgent cells are very small, indeed. Moreover, a Darwinian logic applies to the quality of insurgent forces. Insurgent cells that do well survive. Those that do not are destroyed. We should expect that the most competent insurgents will survive the longest, and competent in this case means flexible and adaptible. Moreover, the tactics of successful organizations can be copied by other organizations, resulting in a overall tougher insurgency.

This analysis suggests that Coalition forces and insurgents are in a holding pattern. This is bad; the insurgents care more about winning than we do, and are will to endure greater losses and to incur greater costs than we are. However, I think that the situations is even somewhat worse that this, because the above arguments don’t take into account the increasing size of Iraqi police and military forces.

How does the development of Iraqi government forces bode ill? In and of itself, an increase in government capabilities is a good thing. Larger Iraqi military and police forces make things harder for insurgents. The problem, however, is that there doesn’t seem to be any indication that the Iraqi forces have made a difference for US casualty rates. There are many, many more Iraqi police on the streets now than a year ago, yet the ability of the insurgency to carry out attacks, to maneuver, and to create costs for the occupation does not seem to have decreased. Rather, the insurgents are now killing roughly the same numbers of Americans, plus a tremendous number of Iraqi soldiers and policemen (2200 this year so far, including 215 in October).

Now, casualty rates are not the best indicator of the success of an insurgency. Armies can reduce casualties in ways that will ensure defeat in war. Much depends on the type of operation that the military is carrying out, and on the strategy that the insurgents employ to defeat the occupying army. Nevertheless, casualty rates ARE one indicator, and this indicator looks really, really troubling. It suggest that the insurgency is not weakening; rather, it seems to be growing stronger at an alarming rate.

Hopefully this analysis has missed some important variable, and I’m wrong.

“Once again, it shows the Democrats use scare tactics,” he complained, sounding as impotent and frustrated as Reid had the day before. “They have no conviction. They have no principles. They have no ideas. But this is the ultimate. Since I’ve been majority leader, I’ll have to say, not with the previous Democratic leader or the current Democratic leader have ever I been slapped in the face with such an affront to the leadership of this grand institution.”

Odd coming from a man whose central contribution to the institution of the United States Senate has been to force it into abject subservience to a recklessly incompetent executive. Senators are not humble people, and I imagine that even many Republicans must be dismayed by Frist’s willingness to surrender the dignity and independence of the Senate to the political whim of George W. Bush and his handlers.

Doe v. Grody–the case in which Alito dissent from a ruling that an unauthorized strip-search of a 10-year old girl was unconstitutional–is yet another forum for the Alito Kabuki dance in which conservatives who approve of Alito’s very conservative jurisprudence turn around and claim that the cases that provide evidence for said jurisprudence don’t really mean what they seem to mean. But, in fact, Alito’s claims that the warrant “authorized the search of any persons found on the premises” and that “even if the warrant did not contain such authorization, a reasonable police officer could certainly have read the warrant as doing so” are transparently wrong, and if applied consistently would represent an exceptionally narrow reading of the Fourth Amendment. iocaste explains in more detail:

The cops then filled out a warrant form for the judge’s signature. The warrant — which is really the operative document — was a pre-printed form with spaces to fill in various details. Now, a lot of the time — most of the time, in fact — the boxes on the warrant form will just be filled out to say that it incorporates everything in the affidavit by reference.

That’s not what happened here. Here, in the space titled “Places and Things to be Searched,” the cops specified only the drug dealer and the house — not the occupants.

[…]

The two judges in the majority…had no trouble concluding that the search was illegal. Though warrants often incorporate the full affidavit by reference, in this case, that did not occur. The warrant specified the things (and people) to be searched, and said nothing about searching anyone other than the targeted drug dealer. It might well be true, said the court, that drug dealers often stash contraband on relatives who live in the same house, and the cops might have had a good reason for searching the wife and daughter. It might well be true that the cops had intended the warrant to authorize a search of all occupants. But that’s not what the judge saw. The judge saw an application to search only one person, and a house — this is what was authorized, this is clear from the face of the warrant. Case closed.

Not so for Judge Alito. Although the warrant specifically had a box for “things to be searched,” and occupants of the house were not included in the box, Judge Alito saw this as a mere “technicality.” The cops had testified that they hadn’t included a more full description in the box for “things to be searched” because there hadn’t been enough room. They testified that they had intended that the warrant cover everything included in the accompanying affidavit. Thus, said Judge Alito, we should give a more flexible interpretation of the warrant.

Except that even if you accept the cops’ word on it, that’s really not the point. Cops don’t get to decide the scope of a warrant; that’s what judges do. Here, a judge was confronted with a warrant that specifically identified the things to be searched, and that’s what the judge authorized. If the cops wanted to search more stuff, and the space on the warrant wasn’t big enough, they could have incorporated the affidavit by reference (as most warrants do), or they could have attached a separate sheet of paper. Instead, the magistrate was confronted with a piece of paper that was quite specific about the things to be searched, and the wife and daughter were not included.

And this is where we get to the critical part of Judge Alito’s analysis. He conceded that the critical issue is what the judge authorized, not what the cops intended. So Judge Alito made inferences about what the magistrate “must have” been thinking: “The magistrate must have understood that the officers, who had drafted the warrant, believed that the warrant, if signed, would give them authorization to carry out a search of the scope specified in the application, viz., a search of ‘all occupants.’ As a result, the magistrate surely would not have signed the warrant without modification if the magistrate had not wished to confer that authority.”

The magistrate “must have understood” this? When confronted with a paper filled out by the cops that specifies only the drug dealer and his house as the specific things to be searched? And it was the magistrate’s responsibility to both intuit that the cops intended something broader and to correct them if the magistrate wanted to narrow the scope of the search to the things specified in the warrant?

Alito’s dissent really is a remarkable piece of work. According to Alito, a search that goes beyond the clear scope of the warrant without exigent circumstances is constitutional, as long as a judge can think up some ex post facto rationale and attribute it without evidence to the judge who issued the warrant. If we are to take this seriously, then the Fourth Amendment’s requirement that warrants have information “particularly describing the place to be searched, and the persons or things to be seized” might as well be removed from the Constitution altogether. The police could have asked for authorization for a strip-search, or they could have asked for a broader warrant. They didn’t do that, and consequently their search was illegal. Alito’s straining to uphold the constitutionality of the search (and to immunize the officers who performed it) provides valuable information about how he’s likely to interpret the Fourth Amendment, and other civil liberties, if he is confirmed.

The law makes a sharp distinction between an affidavit supporting a warrant and the warrant itself. The affidavit is the cops’ wishlist. It’s their chance to make the best possible case for whatever they want to do. It’s the magistrate’s job to decide if the affidavit justifies the measures specified in the warrant. The cops didn’t ask for permission to search the mother and daughter. It doesn’t matter whether the information in the affidavit would have justified a broader search because the cops didn’t ask for one. You go on meth raids with the warrant you have, not the warrant you wish you had.

A warrant applies to the persons or things particularly described in that warrant. One acceptable way to specify those targets is to reference the affidavit, however that referencing must be explicit. The cops argued that the magistrate referenced the entire affidavit by signing the warrant. The court found it implausible that the magistrate would have endorsed the entire affidavit by signing the warrant because the warrant form referenced some passages in the affidavit and not others.

[…]

Alito’s dissent in this case was very troubling, not because he has any special fondness for strip-searching little girls, but because he believes that the police should have vast creative license to interpret search warrants.

Exactly right. And remember: police officers, no less than judges, are state actors bound by the Constitution. It’s their job to follow the requirements of the 4th Amendment.